Anti-Evasion Doctrines and the Second Amendment

by Brannon P. Denning

The Supreme Court’s holding in Heller that the Second Amendment guarantees an individual right to private gun ownership, and its subsequent incorporation of that right through the Fourteenth Amendment two years later has, unsurprisingly, resulted in a welter of litigation attempting to define the contours of that right. Much of the current litigation challenges the constitutionality of various federal and state laws prohibiting certain persons, like felons or perpetrators of domestic violence, from possessing firearms; bans on the carrying of guns in certain places; bans of various types of weapons; and state and local licensing laws.

But as Professor Glenn Reynolds recently observed, a common feature of the “normal constitutional law” of individual rights is the judicial recognition and protection of “penumbral” aspects of rights. By this, he means either “auxiliary protections for a core constitutional right” or “the provisions of rights that are explicitly spelled out in the Constitution.” For example, the Court has invalidated laws deemed to have a “chilling effect” on free speech. In other cases, additional, unenumerated rights—most notably the right of privacy—have been inferred from textual ones. Reynolds speculates that as Second Amendment jurisprudence becomes more “normal,” we might expect to see both types of penumbral protection for the right to keep and bear arms.

This Article draws on previous work to examine whether the courts are creating doctrine that protects penumbral Second Amendment rights in Reynolds’s first sense. It asks whether courts are “ensur[ing] that the core right is genuinely protected by creating a buffer zone that prevents officious governmental actors from stripping the right of real meaning through regulations that indirectly—but perhaps fatally—burden its exercise.” Are courts, in other words, creating what Mike Kent and I elsewhere term “anti-evasion doctrines” (“AEDs”): judicially-created decision rules that prevent officials from evading prior decision rules fashioned to implement constitutional principles. Or are courts engaged in what we described, in a sequel, as “anti-anti-evasion,” i.e., instances in which courts decline to create AEDs.

Part II briefly summarizes our earlier work on AEDs and anti-anti-evasion. Our earlier work offers a working hypothesis that the Supreme Court will decline to create AEDs if, in its judgment, the political safeguards of a particular constitutional principle are sufficiently robust to protect that principle. Part III suggests the forms that Second Amendment AEDs might take and what kinds of laws might spur calls for their creation. Part IV examines recent federal court decisions for evidence of either AEDs or anti-anti-evasion. Part IV also discusses the significance of either for both the future of the right to keep and bear arms as well as Kent’s and my working hypothesis. A brief conclusion follows.

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